Nasim Ali, J.
1. This is an appeal against an order of the District Judge of Howrah dismissing the appellant's application for revocation of the probate of a will. One Suroth Chandra Sadhu Khan of village Salikha in the District of Howrah died on 28th November 1922, leaving a widow Radharani, a daughter Panehumoni by his pre-deceased wife, a minor daughter's son Pasupati and four brothers. On 15th December 1922, three persons Surendra Mukherjee, Kalipada Bhattacharjee and Janaki Nath Mukherji filed an application in the Court of the Additional District Judge of Howrah for probate of a will of Suroth stating inter alia that the will was the last will of Suroth, that it was executed by him on 20th November 1922, and that by the will they were appointed executors. Thereupon special citation was issued to the widow, to the daughter and to the minor daughter's son through his father Kalipada Sadhukhan. There was no opposition to this application for probate, and probate was granted by the District Judge to the executors on 9th January 1923. On 12th March 1923, three of the four brothers of Suroth filed an application for revocation of this probate. On 22nd March 1923, one of the brothers filed an application before the Additional District Judge stating 1 that he had come to learn that Suroth had duly executed the will and that he would not proceed with the application for revocation. On 9th May 1923, the other two brothers also stated before the District Judge that they would not proceed with the revocation case. The petition for revocation was accordingly dismissed on 12th May 1923. On 5th August 1924, Suroth's daughter Panehumoni for self and as guardian of her minor son Pashupati filed an application for revocation of the probate.
2. On 3rd November 1924, the said Panehumoni for self and as guardian of her minor son filed a petition before the District Judge stating that she did not want to proceed with the application for revocation. The revocation case was accordingly dismissed for non-prosecution on that date. On 6th July 1925, Radharani, the widow, brought a suit (Title Suit No. 138 of 1926) in the first Court of the Subordinate Judge at Howrah for the construction of her husband's will and for administration of the estate left by him against the executors, Panehumoni and certain other persons. In that suit a receiver to the estate left by Suroth was appointed on the application of the executors. On 20th July 1928, a preliminary decree in this suit was made and the executors were directed to render accounts. A commissioner was also appointed to ascertain the liabilities and assets of the estate. An appeal to this Court was preferred by the executors against this preliminary decree. During the pendency of this appeal, Eadharani died and Panehumoni, her stepdaughter who was one of the defendants in this suit was substituted in her place. This appeal was dismissed. On 20th September 1932, this suit was finally decreed. There was an appeal (F.A. No. 163 of 1933) against this final decree to this Court. This appeal was compromised. In the year 1934, one Haradhon Dutt brought a suit in the first Court of the Subordinate Judge of Howrah against the executors, Panehumoni and the receiver appointed in the administration suit for enforcement of a mortgage bond executed by the executors in respect of some of the properties left by Suroth. On 1st February 1936, Pashupati filed an application in the Court of the Additional District Judge for revocation of the probate of the will left by Suroth. The grounds of revocation urged before the District Judge are these : (1) That the proceedings were defective in substance inasmuch as the guardian ad litem of Pashupati did not give his consent to his appointment as guardian ad litem. (2) That the will was a forged one. (3) That the executors omitted to exhibit inventory and accounts without reasonable cause. The learned District Judge has arrived at the following findings:
(i) That in the probate proceedings the father and natural guardian of the applicant Pashupati who was a minor at the time was appointed guardian ad litem and that he consented to act as guardian of the minor and consequently the applicant was properly represented in the probate proceedings; (ii) that the applicant has failed to prove that the will is not genuine; and (iii) that no inventory and accounts were filed by the executors as required by law but this was not due to any wilful neglect on their part.
3. On these findings, the learned Judge has dismissed the application for revocation. Hence this appeal by Pashupati. The first point urged on behalf of the appellant in this appeal is that the proceedings for the grant of probate were defective in substance. The only ground on which the proceedings are attacked by the appellant is that his father did not give his consent to act as his guardian in the proceedings and consequently some other persons should have been appointed guardian to represent him in the proceedings. The provisions of Order 32, Rule 4 (3), Civil P.C., are in these terms : 'No person shall without his consent be appointed guardian for the suit.' A non-contentious proceeding for probate is not a suit. Consequently, Order 32, Rule 4 (3) does not in terms apply to a non-contentious probate proceeding. Mr. Bose appearing on behalf of the appellant relied on the following observations of Greaves and Newbould, JJ. in Sachindra Narain Shah v. Hironmoyee Dassi ('20) 7 A.I.R. 1920 Cal. 630.
I am prepared to accept the contention of the learned vakil who appeared for the appellant that Order 32, Rule 4 does not apply as the proceedings had not arrived at the contentious stage, but even so I think that it was for the person who got the guardian appointed to show the Court that that person assented to the guardianship and took upon himself the burden thereof. It seems to me that it is a necessary protection in the interest of an infant that not only should the Court be satisfied that a guardian has been appointed but that a guardian has been appointed who has consented to accept the appointment and take upon himself the onus that by virtue of the appointment falls upon him on behalf of the infant.
4. The learned advocate appearing for the respondents drew our attention to the following observations of Mukherji and Mitter JJ. in Haimabati Mitra v. Kunja Mohan Das : AIR1931Cal713 .
In the Mofussil under the discretion which is vested by Section 283, Succession Act, citation is issued on an application for probate being filed, but the proceedings do not become contentious until they are opposed (Section 286 of this Act) and when there is contention the proceedings take the form of a regular suit to which the provisions of the Code of Civil Procedure apply. The case relied upon by the appellant therefore does not apply to non-contentious proceedings in this country and, as was pointed out by my learned brother in the course of argument, if this contention were accepted, it would revolutionize the law of procedure in probate proceedings in India and would convert every non-contentious proceeding into a contentious proceeding whenever one of the parties to be cited happens to be an infant.
5. Under Section 263, Succession Act, the grant of a probate may be revoked if the proceedings to obtain a grant were defective in substance. When an application is made for revocation of a grant on the ground that the proceedings are defective in substance, the Court on a consideration of all the facts of the case will have to consider whether the proceedings are substantially defective. In this case, the natural guardian and father of the minor was appointed guardian ad litem. He himself received the notice. There is no evidence in this case to show that at that time, he was not looking after the interest of his own minor son. The mother of the minor was also served with a citation. She did not oppose the grant. Apparently, the father who was a resident son-in-law and knew everything about the will and was one of the attesting witnesses to the will thought that he should not waste the minor's money in opposing the grant. In view of the facts and circumstances of the ease, I am not prepared to hold that the proceedings for obtaining probate were defective in substance. The only other point urged by Mr. Bose on behalf of the appellant is that grant ought to be revoked inasmuch as the executors did not file the inventory and accounts as required by law. The trial Judge has found that there was reasonable cause for their not filing the inventory and accounts. In view of the facts and circumstances disclosed in this case, we are not prepared to say that the view taken by the District Judge is wrong. The appeal accordingly fails and is dismissed with costs hearing fee two gold mohurs, to be divided equally between the two sets of respondents.
Mohamad Akram, J.
6. I agree.